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How to repeal ObamaCare

Senate Minority Leader McConnell will offer an amendment to repeal the health care laws. Senate Democratic leaders and the White House are taking a “Move it along, nothing to see here” approach. They correctly point out that, even if Senator McConnell holds all 47 Republicans, as appears likely, he cannot reach the 60 vote threshold he would need to waive a budget point of order that will be raised against his amendment by Democrats. If such a point of order did not exist, Republicans would still need 60 votes to overcome a filibuster of a repeal amendment, and there’s no way they can get to 60.

repeatedly attack the bill legislatively on all fronts, knowing that most votes will pass the House and fail in the Senate;

continue legal pressure through the courts; and

tee up repeal as a key partisan difference in the 2012 Presidential and Congressional elections;

In 2012 win the White House, hold the House majority, and pick up a net 3 Republican Senate seats to retake the majority there; and

In 2013, use reconciliation to repeal ObamaCare, requiring only a simple majority in the Senate.

Reconciliation is a procedural tool primarily used to change spending and revenues, deficits and debt. Repeal of the subsidies, the individual mandate, the insurance provisions, and the Medicaid expansions would, in each case, directly affect spending and revenues, so it would be a straight-up-the-middle use of reconciliation for deficit reduction. Democrats who argued in 2009 that it was OK to use reconciliation to create these provisions would find those same rulings working against them in 2013. A few minor odds and ends could not be repealed in reconciliation. That is strategically unimportant.

At the moment Democrats are hanging their hat on the CBO-scored deficit reduction associated with the two laws. This CBO score means that a straight repeal amendment faces a Budget Act point of order and therefore needs 60 votes to succeed. If Republicans were in 2013 to try to repeal the laws as-is, CBO would score them with increasing the deficit. That’s not impossible to do through reconciliation, but it’s a trickier path.

Still, this is a solvable problem. The best policy way to address this would be to leave some (most?) of the Medicare savings in place, and not repeal them. I’d also favor leaving the “Cadillac tax” on high cost health plans in place.

I think Republicans would be unlikely to choose this path, because it would disrupt their clean policy message and legislative strategy to repeal all of ObamaCare. If I’m right, they could include in the reconciliation bill other spending cuts that more than offset the CBO-scored deficit increase. Technically, the Senate Budget Committee Chairman could also overrule CBO scoring, but why give Democrats the rhetorical advantage of a perceived process abuse? Republicans correctly insist that we need to slow spending growth, and they could here turn a tactical disadvantage into a legislative opportunity to further cut spending.

DC Democrats are right that repeal won’t happen this week, even with a Republican House. They should worry, though, because there is a clear and achievable path to repeal just two years from now, and the McConnell amendment moves down that path.